[HISTORY: Adopted by the Town Board of the Town of Brookhaven 6-9-2016 by L.L. No. 14-2016, effective 6-21-2016; amended in its entirety 4-27-2017 by L.L. No. 5-10-2017. Subsequent amendments
noted where applicable.]
A.
As supported by information and data in the 2015 Suffolk County Comprehensive
Water Resources Management Plan, the Town of Brookhaven (Town) hereby
finds and determines that the impact of Superstorm Sandy underscored
the already well-known importance of Long Island's water resources,
the fragility of its water supplies, and the vulnerability of the
wetlands which serve as the last line of Long Island's natural
defense against storm surge.
B.
The Town further finds and determines that nitrogen contamination
poses a real threat to both drinking water supplies and coastal marine
habitat and resources because nitrogen-induced nutrient loading and
eutrophication can lead to many negative impacts on estuarine environments,
including harmful algal blooms, hypoxia (little oxygen) or anoxia
(no oxygen).
C.
The Town also finds that the adverse impact of nitrogen pollution
is best exemplified by the 93% decline in the clam harvest in the
Great South Bay, over the past 25 years, which resulted from recurring
brown tides fed by nitrogen seepage from septic systems and cesspools.
This decline, in turn, caused the destruction of an entire industry
and the concomitant loss of approximately 6,000 jobs. (Note: 2015
Suffolk County Comprehensive Water Resources Management Plan pg. ES-1.)
D.
The Town also determines that the bay scallop fishery on eastern
Long Island and the hard clam fishery in the south shore bays were
two of the largest in the entire United States and that experts have
concluded that the bay scallop collapse was almost entirely due to
nitrogen-caused algal blooms while over-harvested hard clams have
failed to recover largely due to recurrent brown tides. (Note: 2015
Suffolk County Comprehensive Water Resources Management Plan pg. ES-1.)
E.
The Town further finds that the vast majority of Suffolk County residents
utilize on-site wastewater disposal systems that discharge into groundwater
and approximately 350,000 sub-and non-performing septic/cesspools
in Suffolk County account for more than 75% of the homes in the County.
If septic systems are flooded or submerged in groundwater, they do
not function as designed and they fail to properly and adequately
treat pathogens. The excess nitrogen from the sewage then compromises
valuable natural resources, coastal defenses, and human health. (Note:
2015 Suffolk County Comprehensive Water Resources Management Plan
pg. ES-4.)
F.
The Town also determines that 68% of the total nitrogen entering
the Great South Bay originated from wastewater, including wastewater
from septic systems and sewage effluent discharges. (Note: 2015 Suffolk
County Comprehensive Water Resources Management Plan pg. 8-109.)
G.
The Town further finds and determines that:
(1)
Long Island's entire sixty-mile-long South Estuary Reserve was
declared impaired by the New York State Department of Environmental
Conservation (NYDEC) in 2008, with nitrogen from wastewater cited
as a reason for the designation;
(2)
According to the NYSDEC, there was an 18% to 36% loss of tidal wetlands
in Suffolk County between 1974 and 2001;
(3)
Wetlands have been proven to reduce vulnerability to storm surge
by reducing wave heights by over 80% over short distances by reducing
the energy of waves as they travel over vegetation; (Note: 2015 Suffolk
County Comprehensive Water Resources Management Plan pg. 7-25.)
(4)
All three major estuaries in Suffolk County are suffering from dissolved
oxygen impairments and recurring harmful algal blooms which diminish
county wetlands, the second line of defense to storms; (Note: 2015
Suffolk County Comprehensive Water Resources Management Plan pg. 8-29.)
(5)
Excessive nitrogen has a direct effect on seagrass by promoting the
growth of microalgae which shade it and macroalgae which out compete
it; (Note: 2015 Suffolk County Comprehensive Water Resources Management
Plan pg. ES-17.)
(6)
The New York State Seagrass Task Force estimates that the 200,000
acres of seagrass in Long Island bays and harbors have been diminished
by nearly 90% since 1939, with only 22,000 acres remaining;
(7)
NYSDEC has concluded that cesspools, septic systems, and sewage treatment
plants cause eutrophication, resulting in lower oxygen levels and
persistent algal blooms;
(8)
Experts have identified the Forge River in Moriches, Brookhaven,
as one of the worst cases of anoxia (absence of oxygen) known; (Note:
2015 Suffolk County Comprehensive Water Resources Management Plan
pg. ES-3.)
(9)
Although 87% of all community supply wells in Suffolk County had
nitrogen concentrations less than or equal to 6 mg/L, between 1987
and 2005, there were large increases of nitrogen concentrations in
all of Suffolk County's groundwater aquifers. Nitrogen concentrations
in the Upper Glacial aquifer rose by 40%, and levels in the Magothy
aquifer rose by 70%; and
(10)
Parts of Suffolk County's groundwater exceed maximum contaminant
levels, caused by unsewered, substandard sized lots, especially in
Huntington, Smithtown, and northern Brookhaven, with nitrate levels
ranging from 8 mg/L to 12mg/L in certain Magothy wells in Northport
and East Northport.
H.
The Town acknowledges that restrictions on nitrogen contamination
via cesspools and sanitary systems cannot solve the entire problem
of contamination of Brookhaven's water supplies, natural habitat,
and water resources but must, instead, be viewed as an incremental
component of a larger and more comprehensive plan to reverse this
contamination.
I.
Therefore, the purpose of this chapter is to begin an incremental
rollback of the discharge of nitrogen from sanitary waste into the
ground by enacting more stringent standards for sanitary systems installed
on residential properties for the construction of a new dwelling or
structure, or construction that fully replaces demolished existing
structures, located within 500 feet of a body of water, by requiring
a sanitary system nitrogen standard averaging no greater than 19 mg/L,
beginning January 1, 2017.
The following words shall have the following meanings for the
purposes of this chapter:
The building of a dwelling designed for residential purposes
and arranged or intended to be occupied by one family, or two families
living independently of each other.
The Town of Brookhaven Department of Planning, Environment
and Land Management, or any successor department thereto.
A single system of piping, tanks, or other facilities serving
only a single parcel and disposing of sewage or other liquid waste
into the soil of such parcel, which is commonly referred to as an
innovative and alternative on-site wastewater treatment system (I/A
OWTS.)
Encompasses an area within 500 feet of surface waters such
as the Atlantic Ocean, Long Island Sound, the Great South Bay, the
Forge River, the Carmans River, and other rivers, lakes, streams,
ponds, ditches or canals within the Town of Brookhaven, this being
that area in which nitrogen discharged from sanitary systems has the
shortest travel time to surface waters. Properties within 500 feet
of surface waters tend also to lie within flood zones or coastal erosion
hazard areas and are subject to flooding and/or collapse if on a bluff
or dune that may result in nitrogen and pathogens from sanitary systems
affecting surface waters to a greater degree than properties located
further from surface waters.
An individual, owner, firm, corporation, company, parent
company, subsidiary, limited-liability company, substantially owned
affiliated entity, association, partnership, joint venture, institution,
public body, entity, joint-stock association, partnership, joint venture,
legal representative, agent or any other form of doing business or
any other group of individuals and/or entities and includes the plural
as well as the singular.
Water-carried wastes from residences, institutions, businesses
and commercial and industrial buildings and establishments, or a combination
thereof, together with such groundwater, surface water and stormwater
as may be inadvertently present. The admixture of sewage with industrial
wasters or other wastes shall also be considered "sewage" within the
meaning of this definition.
Any person who proposes, undertakes, or engages in the creation
of a new construction project, on or after the effective date of this
chapter, which construction project: 1) is located within a NPZ; and
2) requires the installation of an individual sanitary system, pursuant
to Articles five and/or six of the Suffolk County Sanitary Code or
any successor article thereto, shall install an I/A OWTS that discharges
into the ground no more than 19 milligrams of nitrogen per liter of
effluent (19 mg/L) on average as measured over 12 samples taken one
per month for a year.
A.
Any person who proposes, undertakes, or engages in the creation of
a replacement construction project, on or after the effective date
of this chapter, which construction project is located within a NPZ,
and requires the installation of an individual sanitary system pursuant
to Articles 5 and/or 6 of the Suffolk County Sanitary Code or any
successor article thereto, shall install an 1/A OWTS that discharges
into the ground no more than 19 milligrams of nitrogen per liter of
effluent (19 mg/L) on average verified by the requirements of the
Suffolk County Department of Health Services, as follows:
[Amended 11-30-2017 by L.L. No.
23-2017, effective 12-6-2017]
(1)
Residential structures constructed on or before December 31, 1986,
which propose additions that increase the number of bedrooms, or increase
the floor area of the existing structure as indicated on the earliest
certificate of occupancy by an area greater than 10%, including the
sum of the area of any previous additions, must install an innovative
and alternative on-site wastewater treatment system.
(2)
Residential structures constructed on or after January 1, 1987, which
propose additions that increase the number of bedrooms, or increase
the floor area of the existing structure as indicated on the earliest
certificate of occupancy by an area greater than 50%, including the
sum of the area of any previous additions, must install an innovative
and alternative on-site wastewater treatment system.
B.
In the
event an existing construction project must be replaced due to damage
caused by winds, torrential rainfall, flooding and/or storm surge
from hurricanes or natural disaster, any person required to install
an I/A OWTS pursuant to this chapter may seek a waiver from such installation
requirements, from the Board of Zoning Appeals , which waiver may
be granted only upon a showing of undue financial hardship. The Board
of Zoning Appeals is authorized to grant relief in conformance with
this section, and may grant such application, impose such reasonable
conditions upon its grant of approval of any such relief as it deems
appropriate, or may deny the application.
[Amended 8-10-2017 by L.L. No. 21-2017, effective 8-18-2017]
A.
Any applicant/owner of a construction project shall submit a copy
of a Suffolk County Department of Health Services approval for an
I/A OWTS prior to the issuance of a building permit.
B.
Permitting
and reporting. The Division of Environmental Protection may, at any
time, require an owner of an I/A OWTS to submit a monitoring report,
engineer's report, and/or performance and maintenance report
demonstrating compliance with the provisions of this chapter.
Any owner of real property within the Town of Brookhaven who incurs a documented cost in connection with complying with Chapter 78A of the Brookhaven Town Code may apply for reimbursement of the cost of the installation of a residential I/A OWTS pursuant to § C12-2D(2) of the Suffolk County Charter (SCC). The request for such reimbursement shall be made to the Suffolk County Sewer Infrastructure Committee ("Committee") which was established by § C12-2D(4) of the SCC to review all applications for funding of sewer infrastructure, sewage treatment projects, and the installation of I/A OWTS, and to make advisory recommendations to the County Executive and the County Legislature as to which projects should receive funding. This section of the SCC was approved at public referendum by the voters of Suffolk County in 2014 and authorizes this funding stream through 2021.
A.
This chapter shall apply to all actions occurring on or after January 1, 2017, subject to the provisions set forth in Subsection B.
B.
The sanitary system nitrogen standard set forth in this chapter is
based upon a written statement of the Commissioner of the Suffolk
County Department of Health Services (SCDHS). The Town shall be authorized
to alter the nitrogen standard following future written statements
containing a determination by the Commissioner of the SCDHS that the
technology exists to improve such standard by decreasing the milligrams
per liter of effluent. The Department shall submit a written request
to the Commissioner of SCDHS on a yearly basis, commencing on December
1, 2017, and each year thereafter. In those years that the SCDHS determines
in writing that the technology exists to decrease the milligrams per
liter of effluent, the Town is authorized to mandate the limits of
nitrogen effluent milligrams per liter to the applicable standard
set by the SCDHS. Such authorization shall be by resolution of the
Town Board, and shall take effect within 30 days after approval.
A.
Penalties and fines.
(1)
Any person who violates any provision of this chapter shall, for
the first offense, be guilty of a violation punishable by a fine of
not less than $500 nor more than $1,000, and for a second and each
subsequent offense, be punishable by a fine of not less than $1,000
nor more than $2,000. Each offense shall be a separate and distinct
offense, and, in the case of a continuing offense, each day's
continuance thereof shall be a separate and distinct offense.
(2)
Any corporation which violates any provision of this chapter shall,
for the first offense, be guilty of a violation punishable by a fine
of not less than $500 nor more than $1,000, and for a second and each
subsequent offense, be punishable by a fine of not less than $1,000
nor more than $2,000. Each offense shall be a separate and distinct
offense, and, in the case of a continuing offense, each day's
continuance thereof shall be a separate and distinct offense.
C.
Equitable relief. The Town of Brookhaven shall have the right to
seek equitable relief to restrain any violation or threatened violation
of any provisions of this chapter.
If any clause, sentence, paragraph, section or item of §§ 78-1 through 78-8 shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not impair nor invalidate the remainder hereof; but such adjudication shall be confined in its operation to the clause, sentence, paragraph, section or item directly involved in the controversy in which such judgment shall have been rendered.
